Anonymity: politics, polarisation and the public interest

15 March 2022 by Anurag Deb

In the politically-charged and at times feverish aftermath of the Brexit referendum, Gina Miller became a “magnet for hatred” for exercising her right of access to courts and winning two landmark public law cases against the UK Government. The magnitude and ferocity of abuse directed at Gina Miller made those who followed in her footsteps wary enough to seek anonymity. In Yalland and others v Brexit Secretary, 4 claimants were granted anonymity in relation to a judicial review claim concerning UK participation in the European Economic Area Agreement.

Anonymity in Northern Ireland is not uncommon where some part of a claimant’s deeply personal life or history play a role in the determination of their claim. JR80 for example involved a claimant who had suffered egregious institutional abuse as a child, while JR123 involved a claimant with ancient convictions which disproportionately impacted his life.

In JR181(3)’s application for judicial review, however, anonymity was ordered to continue in the face of a politically-charged atmosphere reminiscent of the worst of the Brexit era.

The facts

The substance of JR181’s judicial review challenge concerned the controversial decision by Northern Ireland’s Minister for Agriculture, Environment and Rural Affairs to order a unilateral halt to construction works around post-Brexit agri-food checks between Great Britain and Northern Ireland. The specific legal provisions of the Ireland/Northern Ireland Protocol (the Protocol) which give rise to these checks are complex, still-evolving and luckily far beyond the scope of this post. Their relevance to the judgment, however, is in the polarising politics which surround them.

The Protocol, to put it mildly, has been controversial in Northern Ireland. Reactions have ranged from active hostility at the idea of a customs and regulatory border between Northern Ireland and Great Britain, to resigned acceptance and hope for future changes. The polarising politics which surrounds the Protocol is amply illustrated in JR181 itself. The present judgment was triggered as a result of (among other things) queries from a journalist, Adam Kula, over whether the applicant’s political affiliation was the main reason for the anonymity ([14]). The applicant, in turn, grounded the request for anonymity on fear of “acts of aggression and hostility shown towards all things Northern Ireland Protocol related”([22]), stating that he was “clearly known to loyalist paramilitaries” ([26]). Mr Kula pointed out: “if [being known to loyalist paramilitaries] were the test for granting anonymity then anyone in the public domain could seek to bring proceedings under a cipher as the applicant has sought to do here [the judicial review]” ([26]).

Mr Justice Colton observed:

A key thrust of Mr Kula’s submissions appear to be based on his suspicion or assumption that these proceedings are being brought by the applicant on behalf of or with support from his party. The thrust of the objection appears to be based on the fact that the applicant may well have been granted anonymity simply because he is a member of Sinn Fein. Underlying his objection is the suggestion that the applicant is somehow a proxy for Sinn Fein and that it would be wrong for this to be done under the cloak of anonymity ([29]).

The reasoning

Colton J began by referencing the well-known principle of open justice, whereby parties to litigation should be “named and known to the public”([33]), reinforced by Article 10 ECHR (the right to freedom of expression and information) and section 12 of the Human Rights Act 1998 (freedom of expression). Any derogations from the principle of open justice, therefore, should be “strictly justified and necessary”([34]). The applicant’s evidence required the Court to balance the public interest inherent in Article 10 with the applicant’s rights under Articles 2 (the right to life) and 8 (the right to private and family life) of the ECHR.

Northern Ireland, as Colton J observed,

is very familiar with applications for anonymity, particularly in the context of controversial inquiries, inquests and criminal trials ([38]).

Nevertheless, the approach to anonymity, and the countervailing interests of the applicant and the wider public (in open justice) are “fact sensitive”([39]).

In Colton J’s reasoning, the facts presented by the applicant, in the context of the febrile politics surrounding the Protocol itself, constituted a real risk, and not merely a fanciful or trivial one. This language is very classic to considerations under Article 2 ECHR. Colton J referred to the judgment of Lord Justice Girvan in Re C and others [2012] NICA 47, but the antecedence of the language goes back further, to cases such as Re W’s application [2004] NIQB 67, concerning police protection, subsequently approved by the House of Lords in Re Officer L [2007] UKHL 36, which concerned an application for anonymity by a police officer in the context of the Robert Hamill Inquiry. But a real and immediate risk to the applicant in JR181 was not the end of the matter.

The context of JR181 was more than the risk faced by the applicant – it was a risk faced in a particularly political context. Colton J adopted part of the reasoning of the Divisional Court in Yalland, specifically the following:

We consider that in this particular case to publish the names of the Claimants would add little, if anything, to a proper understanding of these proceedings and the issues involved([45],

quoting Yalland at [39]). This is particularly important given that the high-profile substance of the main challenge in the JR181 litigation (a Northern Ireland Minister instructing his officials to cease work in connection with the Irish Sea border) is likely to be widely reported and read “irrespective of any inability to name the applicant” ([54]).

Given the two main points in the judge’s reasoning – a real and immediate risk and the ability of the legal issues to be reported and read regardless of the applicant being named – a fresh anonymity order was granted.

Discussion

Northern Ireland is indeed no stranger to anonymity applications in respect of controversial legal matters. This is unsurprising, given that the jurisdiction’s dark past continues to reverberate down the years. Litigants, their lawyers and Northern Ireland’s judges have been subjected to and even succumbed to horrific violence in the recent past.

The question, when anonymity is considered, is how to balance competing interests: open justice and risk to life. Adding to this consideration is a question which is seemingly pragmatic: whether anonymity risks restricting the open reporting and reading of the legal issues underlying a case. Obviously, in fact sensitive legal proceedings, anonymity may well have such a restrictive effect, and thus be granted with greater caution.

But the question of the impact of anonymity on the public ventilation of a case is not only a pragmatic question. The torrent of abuse which followed Gina Miller in the aftermath of her highly-publicised cases illustrates a dark side to being in the public eye, with a risk no less real than that facing the applicant in JR181. The present case did not turn only on this risk, but it is appropriate that Colton J took account of it in his reasoning. After all, keeping the public well-informed of legal issues requires litigants to bring cases in the first place, and no one should have to do so in a climate of fear.